Kevin's Incredible Link Summary
I took Jason's advice and read the link that I had added to the chapter one commentary. Great advice, Jason. Anyway, I'm sure there are people who are too busy to plow through the article and its corollary sub-links, so I've posted what I'd call the pivotal idea-bite from it all:
I’m saying the Eighth Amendment means what was cruel and unusual and unconstitutional in 1791 remains that today. ... Executing someone under eighteen was not unconstitutional in 1791, so it is not unconstitutional today. Now, it may be very stupid. It may be a very bad idea, just as notching ears, which was a punishment in 1791, is a very bad idea. But the people can change, the people can eliminate those stupidities if and when they want. To evolve, you don’t need a [living] constitution. All you need is a legislature [and] a ballot box. Things will evolve as much as you want. They can create a right to abortion. They can abolish the death penalty. They can legitimize homosexual sodomy. All of these things, all of these changes can come about democratically.
...
I’m not saying originalism gives you an answer to every question. But it gives you an answer to an awful lot of questions, including the most controversial ones: abortion, suicide, homosexual sodomy. Those answers are clear. Whereas, the non-originalists has no answers. ... You know, is the death penalty unconstitutional yet, with evolving standards of decency? - Justice Scalia
posted by Jon K. Houghton | 11:47 AM
3 Comments:
Thanks Kevin,
Here is another little tid bit for those of you to read who don't want to read the whole thing (I should really post the whole thing):
And finally, this is what I will conclude with, although it is not on a happy note, the worse thing about the Living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed, close to nineteen years ago now, by a vote of ninety-eight to nothing. The two missing were Barry Goldwater and Jake Garn, so make it a hundred. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man, somebody who could read a text and give it its fair meaning, had judicial impartiality and so forth. And so I was unanimously confirmed.
Today, barely twenty years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience, a new constitution, with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right, and the other right. We want to pick people that would write the new constitution that we would want.
And that is why you hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Half way between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, “We’re not yet ready to say that. Stay tuned, in a few years, the time may come, but we’re not yet ready.” And that was a moderate decision, because I think most people would not want a… If we had gone, looked into that and created a national right to assisted suicide that would have been an immoderate and extremist decision.
I think the very terminology suggests where we have arrived: at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts, you know, “Judge so and so, do you think there is a right to this in the Constitution? You don’t?! Well my constituents’ think there ought to be, and I’m not going to appoint to the court someone who is not going to find that.” When we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority. And they will be selecting justices who will devise a constitution that the majority wants.
And that of course, deprives the Constitution of its principal utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take that are favored by the majority is a recipe for destruction of what we have had for two-hundred years.
-Justice Scalia
I'd like to hear what some of you think after reading all this. I mean really, is he (Justice Scalia) off his rocker?
Jason- Scalia isn't off his rocker. From what you posted, He seems to say what I had been trying to put into words. Simply put, why do we think of judges as moderate or liberal or conservative. They should not have any such label. They should be labeled intelligent, capable, knowledgeable. Someone who will read a text and apply it literally.
Everyone has the right to life, liberty and the pursuit of happiness. Abortion denies many that basic human right.
Bree, what Scalia is saying that he acts as a check to ensure that the majority does not get away with whatever law they want passed. So, I think, it is safe to infer that he considers minorities interests in the light of the constitution, when the majority presents him with a proposal.
It makes sense. But it also blurs the line separating the judicial and legislative branches, doesn't it? I suppose that is the tough balancing act to perform: to be independant as well as keep the other branch in check.
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